2002 P Cr (PLP)

TARIQ PARVEZ KHAN, J.‑‑‑ This, is an appeal against conviction and sentence recorded by learned Additional Sessions Judge/Judge Special Court, Peshawar on 13‑9‑1999. Appellant has been sentenced to life imprisonment and his property 'stands confiscated when he was prove to have committed offence under section 365‑A read with section 120‑B, P.P.C. been extended the benefit of section 382‑B; Cr.P.C.

2. Charge against the appellant is that he on 3‑9‑1995 at 11‑40 hours alongwith his dead co‑accused and absconding co‑‑accused Wahid as well as co‑accused (then on trial) Abdul Karim (since dead) abducted Akbar Alam for demanding ransom alongwith a Pajero Jeep No.3813‑ADB and thereby committed an offence under section 365‑A, P.P.C. read with section 120‑B, P.P.C.

3. Crime was reported by Jan Alam (P.W.5) brother of abductee Akbar Alam (P.W.6). It was recorded as F.I.R. No.813, dated 3‑9‑1995 of Police Station University Town, Peshawar by Sardar Hussain, H.C. (P.W.4). In the report none was charged except it was stated that complainant Jan Alam while allegedly present in front of gate of his bungalow and when his brother Akbar Alam while driving Pajero Jeep reached near the gate of the bungalow, in the meanwhile a Suzuki motor car bearing Registration No. PRN‑3425‑white colour overtook the Pajero, made it stopped and from the motor car four persons got down and started conversation with Akbar Alam. Out of them, one was armed with pistol. They on gun‑point made Akbar Alam to sit in the rear seat of Pajero and three of them took away the abductee and the Pajero while the fourth drove away Suzuki Car.

4. Abductee Akbar Alam was recovered on 5‑9‑1995 from the house of Yousaf co‑accused from Taj Abad Abshar Colony Warsak Road, Peshawar.

5. Appellant Kachkool was arrested on 5‑9‑1995 and on 12‑9‑1995 his confession was recorded which is Exh.P.W.8/3. At the time of his apprehension from his pocket one paper‑slip containing telephone Nos.42620 and 45165 were recovered and taken into possession vide memo. Exh.P.C./2: Motor car used in the commission of the crime and veil were recovered on the very day of occurrence i.e. on 3‑9‑1995 and so was the Pajero Jeep. The recovery of both the vehicles has been witnessed by Jan Alam complainant and constable Murad Ali.

5. One of the most important document in this case is pointation memo. Exh. P. W. 9/ 1 prepared at the instance of Kachkool when he 'while in hand‑cuffs led the police party and pointed out the house where the abductee was detained. This memo was prepared on 5‑9‑1995. At the time of alleged recovery of the abductee there was encounter and cross‑firing between the police and the accused party resulting in death of accused Nawab alias Yousaf, Amir Khan and Kabal. From the respective possession of all the three dead accused two kalashnikovs and one .30 bore pistol allegedly were recovered.

7. Prosecution has produced Mustamir Shah, A.S.‑I. (P.W.1) who is marginal witness to recovery memo. Exh.P.C., an audio cassette and Exh.P.C./1 pointation memo. of the spot of occurrence. Zar Khan (P.W.2) is witness to memo. Exh.P.C./2 i.e. chit bearing two telephone numbers. Muhammad Javed (P.W.3) arrested accused Kachkool on 5‑9‑1995 from Al‑Nooria Market opposite Firdoos Cinema, Peshawar City while allegedly talking on telephone and has recovered a slip of paper containing two telephone numbers. Sardar Hussain (P.W.4) has recorded the report Exh.P.A. Jan Alam (P.W.5) is complainant and Akbar Alam (P.W.6) is the abductee. Nasrullah (P.W.8) was then a Magistrate and has recorded confession of Kachkool on 12‑9‑1995 which is Eith.P.W.8/3. Abdul Malik Khan, S.H.O. (P.W.9) on the pointation of Kachkool accused raided the house wherefrom abductee was recovered. Haji Imtiaz (P.W.10) investigated this case and after telephonic conversation with Kachkool regarding demand of ransom he directed the other, police party to arrange a raid, consequent upon Kachkool was arrested.

8. When accused‑appellant was examined under section 342, Cr.P.C. he totally denied his involvement in the commission of the crime except that he accepted his presence outside a P.C.O. wherefrom his dead co‑accused Yousaf was to make a local call.

9. Two accused in this case are still absconding namely Wahid and Nisar. Abdul Karim a co‑convict died and in this respect detailed order -sheet has been recorded by this Court in Criminal Appeal No.283 of 1999. Three accused namely Nawab alias Yousaf, Amir Khan and Kabal died as a result of police firing on 5‑9‑1995.

10. Counsel appearing for Kachkool appellant has argued that Kachkool was not named in the V.I.R. and although according to Akbar Alam abductee, Kachkool was known to‑him from before as he belongs to their area. Same would be the case of Jan Alam complainant brother of the abductee but still he has not named him in the F.I.R. It is argued that pointation memo. Exh.P.W.9/1 refers to pointation of the house where Akbar Alam was detained but does not mention about the recovery of Akbar Alam. It is submitted that Kachkool was arrested on 5‑9‑1995 but his confession was recorded on 12‑9‑1995 after a delay of 7/8 days and such would not be a voluntary confession. It is also argued that in the confession there are exculpatory facts as for appellant is concerned. Contention is made that the whole story of the prosecution regarding abduction is a cooked up story and tailored to involve the appellant in the crime because within five minutes the report was made and on the very day of report two vehicles were recovered. It is argued that no independent witness has appeared to prove that Kachkool has ever made telephone call at the residence of abductee.

11. Learned counsel appearing for the complainant and learned State Counsel argued that there is no enmity between the parties and report of the occurrence was made within five minutes and because none was charged in the F.I.R. this would rather reflect on the truthfulness of the prosecution story otherwise they could have conveniently named the present appellant or any other accused in the F.I.R. It is argued that Akbar Alam abductee has specifically charged the appellant Kachkool rather he appears to be the main culprit and that Kachkool was apprehended when he was making telephonic conversation with the complainant side and was demanding ransom. It is also argued that the recovery of Akbar Alam abductee was made subsequent to the disclosure made by Kachkool as the place of detention was known to him only. It is argued that confession though recorded after 7/8 days but it contains true facts and, therefore, can be relied upon for conviction.

12. After we have heard learned counsel for the parties and ourselves having gone through the evidence and other record of the case, we regret to agree with the submissions made by learned counsel for the complainant and learned Deputy Advocate‑General. This case is full of inherent doubts commencing from the very registration of the F.I.R. Occurrence is alleged to have taken place at 11‑40 a.m. but has been reported at 11‑45 a.m. i.e. within five minutes though Police Station University Town where report is made is two kilometers away from the scene of crime. It is in evidence and also in the report that the alleged abductee, Akbar Alam, was driving a Pajero Jeep and when reached near the gate of his house he was stopped by four persons who had come in a Suzuki car. If someone was to abduct him why they should allow him to reach a point situated right in front of his house and that per chance Jan Alam complainant would also be present outside the bungalow as if he had intuition that his brother will be abducted though ordinarily the being an Advocate was supposed to be present in the Court premises at 11‑40 a.m. No doubt that a prompt F.I.R. corroborates the version of the, complainant but a very prompt F.I.R. as in the instant case, would rather suggest that as if things were pre‑planned, because, if an the sight of a brother another brother is abducted at least the eye‑witness would take some time to compose himself, get some vehicle after informing the inmates of the house and would then reach the police station which is not possible within five minutes.

13. Though no accused is named in the F.I.R. but there is specific reference that if anyone of them appears/produced before the complainant f he will be in a position to identify the assailant. Kachkool appellant was though arrested on 5‑9‑1995 but was never put to test identification parade through P. W. Jan Alam the complainant. In evidence at the trial Jan Alam complainant denied to be knowing Kachkool from before whereas abductee Akbar Alam categorically stated that Kachkool was known .to him as he belongs to their Illaqa. Both P. Ws.5 and 6 hail from village Tangi, District Charsadda and so is Kachkool appellant and it is a matter of common knowledge that if one brother would know the appellant before the occurrence the other brother should also be known him but such fact is denied by P. W.5. The incriminating evidence in this case against the appellant consists of statements of Jan Alam and Akbar Alam, pointation memo. Exh.P.W.9/1 prepared on the pointation of appellant when he led the C police party after his arrest and has pointed out the house where Akbar Alam was detained and from such house Akbar Alam was recovered. The next would be confessional statement of Kachkool EXh.P.W.8/3 recorded on 12‑9‑1995 by Nasrullah (P. W.8).

14. Whether Kachkool has led the police party and consequent upon his pointation alleged abductee was recovered is a question which we will first dilate upon. Exh.P. W.9/1 is authored by Imtiaz Ahmad (P. W.10) who was then S.H.O. Police Station University Town. This memo. is witnessed by Abdul Malik S.H.O. Hyatabad and Shah Nawaz Khan the then S.H.O. Police Station East Cantt., Peshawar, of them only Abdul Malik appeared as P.W.9. In the pointation memo. the language used is; This pointation memo does not refer to the recovery of abductee but only place of detention. P. W.6 Akbar Alam when asked in cross‑examination stated that he has not seen Kachkool with the police at the time of his recovery and when he came out of the house where he was detained he only learnt that accused Kachkool has been arrested. Such statement of abductee' would belie not only document Exh.P.W.9/1 but would also reflect oat the truthfulness of statement of Abdul Malik and Imtiaz Ahmad P. Ws. Who stated that Kachkool was present with them at the time of recovery of the abductee.

15. At the time of arrest of appellant allegedly made by Muhammad Javed (P.W.3) the accused was present in Al‑Nooria Market opposite Firdaus Cinema, Peshawar and he was at that time talking on telephone. Zar Khan (P.W.2) a constable who is witness of the arrest stated that accused was arrested from a P.C.O. situated in front of Ayaz Restaurant and he was so arrested because he was suspected and was, therefore, interrogated. This would mean that at the time of arrest whether the appellant was talking on telephone has been put into doubt.

16. According to Exh.P.C./2 a paper‑slip was recovered from the person of accused‑appellant containing two telephone numbers i.e. 42620 and 45165 both allegedly installed at the residence of complainant. No third telephone number was recovered. According to the statement recorded as examination‑in‑chief of Jan Alam complainant there is no reference of any telephone call received by him after the abduction of his brother except that he stated that his brother was recovered by the police on 5‑9‑1995 and that the local police has contacted them during investigation, and also informed him about the arrest of the accused. The demand of ransom is only referred to by Akbar Alam in his statement at the trial and that he was allegedly told by Kachkool that he has been contacting his relatives for the payment of ransom. The story of ransom, the telephonic conversation and consequential arrest has been highlighted by Haji Imtiaz Khan (P.W.10). He stated that on 4‑9‑1995 he was sitting in the house of complainant when a telephone call was received, complainant attended the call but as he was confused, therefore, has handed over the receiver to him and then he posing himself to be a cousin of the abductee had talked to the accused but without naming the accused who was talking to him and that said accused told him that he will call back at 7‑30 p.m. The second telephone call was received and they settled Rs.22,00,000 for the release of abductee. It is also in his statement that telephone No.42620 being non digital it could not detect the incoming call and instead telephone bearing No.842274 installed in a nearby Marble Factory was communicated to the accused to be used for the next call and when at 8‑30 p.m. on 5‑9‑1995 call was received and when through Telephone Department he learnt that such telephone is installed in Madina Market Charsadda Road wherefrom call has come in, he kept the person talking on telephone busy and sent the police party to the said shop for the arrest of the accused. It is also in his statement as well as in the statement of Abdul Malik that accused‑appellant while in hand‑cuffs has led them to the house where the abductee was detained.

17. The owner of P.C.O. wherefrom accused‑appellant was allegedly arrested has not been examined nor named. There are three different locations given by different witnesses regarding place of arrest, one referring to Al‑Nooria Market, the other to Ayaz Restaurant while Investigating Officer refers to Madina Market and he also refers to Hayat, Hotel. This difference in the statement of three witnesses would put into I doubt the arrest of the accused.

18. If the two telephone numbers were recovered from the personal search of the appellant and if P. W. 10 on 4‑9‑1995 has asked the accused to contact in future on telephone No.842274 such number should have been written on the chit because it is not conceivable that if once a telephone number is conveyed would be memorized for future use.

19. As for confession is concerned, we will discard the same on the ground that it was recorded on 12‑9‑1995 although accused was arrested on 5‑9‑1995. There is, therefore, delay of 7/8 days in recording the confession. An accused person and appellant in this case if was volunteer to point out the place of detention of the abductee on the very day of his arrest he should have been similarly volunteer in making confession on the same day if not on the following. P. W.10 states that he produced the accused for recording confession after the expiry of his police remand which is not correct because according to P. W.8 Nasrullah (Magistrate recording confession accused Kachkool was produced for police custody on 6‑9‑1995 which was valid for eight days i.e. up to 14‑9‑1995 but accused was produced on 12‑9‑1995 for recording confession i.e. before the expiry of period of remand. Where confession is recorded after delay of 7/8 days though accused has already pointed out the place of detention of the abductee and where Investigating Officer intentionally tells lie that confession was recorded after the expiry of police custody, such confession in our view would not be a voluntary confession. The same is, therefore, excluded of consideration. For the reasons, as stated above, we are of the view that the prosecution has failed to bring home charge against the appellant. This appeal is, therefore, allowed. Conviction and sentence of the appellant are set aside and he is acquitted of the charge. He be released from jail forthwith, if not required in any other case. S.M.A./581/P Appeal accepted.